U.S. v. Castro-Juarez, 05-1195.

• Decision Date: 03 October 2005
• Docket Number: No. 05-1195.,05-1195.
• Citation: 425 F.3d 430
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Salvador CASTRO-JUAREZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

425 F.3d 430

UNITED STATES of America, Plaintiff-Appellee, v.Salvador CASTRO-JUAREZ, Defendant-Appellant.

No. 05-1195.

United States Court of Appeals, Seventh Circuit.

Argued August 2, 2005.

Decided October 3, 2005.

Robert L. Garrison(argued), Office of the United States Attorney, Criminal Division, Fairview Heights, IL, for Plaintiff-Appellee.

Stephen C. Williams(argued), Office of the Federal Public Defender, East St. Louis, IL, for Defendant-Appellant.

Before COFFEY, MANION, and ROVNER, Circuit Judges.

MANION, Circuit Judge.

Salvador Castro-Juarez pleaded guilty to being in the United States unlawfully after his removal following a felony conviction, 8 U.S.C. § 1326(a), (b)(1).The district court sentenced him after United States v. Booker,___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621(2005), to 48 months, well below the 10-year statutory maximum but more than twice the 21-month upper end of the advisory guideline range.On appeal, Castro-Juarez's sole contention is that a sentence of 48 months is unreasonable in this case.This appeal requires us to gauge the "reasonableness" of a sentence above the advisory guideline range, a process that continues to evolve in our decisions applying Booker.We hold only that the district court did not sufficiently explain its choice of sentence, and for that reason we vacate Castro-Juarez's sentence and remand for resentencing.

I.

Police in Bond County, Illinois, arrested Castro-Juarez in July 2004.Castro-Juarez, a felon, had twice been removed from the United States, most recently in July 1995, and had not received permission to reenter.After Castro-Juarez pleaded guilty in September 2004 to violating § 1326(a) by returning to the United States, the probation officer prepared a presentence investigation report assigning a base offense level of eight.U.S.S.G. § 2L1.2(a).An upward adjustment of four levels based on Castro-Juarez's prior felony convictions, U.S.S.G. § 2L1.2(b)(1)(D), and a downward adjustment of two levels for acceptance of responsibility, id.§ 3E1.1, yielded a total offense level of 10.The presentence report identifies nine convictions and the corresponding number of criminal history points:

(1) simple possession of heroin, incurred in 1986(0 points);

(2) simple possession of narcotics, incurred in 1995(1 point);

(3) giving false information to a police officer and driving without proof of insurance or a driver's license, incurred in 1996(0 points);

(4) theft (of a pair of shoes), incurred in 1997(1 point);

(5) harassment (he struck his girlfriend), incurred in 1998(1 point);

(6) third degree assault (during a bar fight), incurred in 1998(1 point);

(7) harassment and child abuse (he assaulted his girlfriend in the presence of two children), incurred in 1999(2 points);

(8) theft (shoplifting), incurred in 2000(1 point); and

(9) domestic battery (he struck his wife), incurred in 2002(1 point).

Since multiple offenses that produce just one criminal history point cannot yield more than four total points, these convictions counted for only six points.SeeU.S.S.G. § 4A1.1(c).Two points were added because Castro-Juarez was under a criminal justice sentence when he committed the § 1326(a) violation for which he was being sentenced.SeeU.S.S.G. § 4A1.1(d).The resulting eight criminal history points placed Castro-Juarez in criminal history category IV.SeeU.S.S.G. Ch. 5, Pt. A.Based on a total offense level of 10 and a criminal history category of IV, the probation officer calculated a guideline imprisonment range of 15 to 21 months.Seeid.

The district court sentenced Castro-Juarez on January 14, 2005, two days after the Supreme Court decided Booker.The court, aware of that decision, acknowledged that its choice of sentence should take into account the various factors set out in 18 U.S.C. § 3553(a).After inviting allocution from Castro-Juarez, the court told him:

The problem I have is that, as you say, you've been here a long time, you've always been here illegally, you've been here at least three times that you've been caught illegally.You have a horrible history with respect to your activities while you've been in this country.You've engaged in many many illegal acts, and one of the great things that bothers me about your activity while you've been here is several of these illegal acts have been violent acts.You've engaged in a number of crimes that have involved physical violence against others, including the women you have — woman or women you have been involved with, and at times have endangered children.So you have history that is very terrible.You have done some time in jail.You have not done very much time in jail, but you don't seem to get the picture that when you do bad things in this country, bad things are going to happen.So I'm not at all impressed with your behavior while you've been in our country.

The court added that "the Guidelines in your case don't seem to take into account a person who has re-entered now on three occasions and who has the kind of criminal history that you have, and so I'm not going to apply the Guideline in your case."The 48-month term the court chose is more than twice the high end of the guideline range, and more than three times the low end of the range that the prosecutor recommended as an appropriate sentence.

II.

Castro-Juarez's sole argument on appeal is that 48 months is an unreasonable sentence.In Bookerthe Supreme Court explained that sentencing judges must be guided by the factors in 18 U.S.C. § 3553(a), including the applicable guideline range, id.§ 3553(a)(4); our task is to review the resulting sentence for "unreasonableness" in light of those same factors.Booker,125 S.Ct. at 765-66;seeUnited States v. Alburay,415 F.3d 782, 786(7th Cir.2005);United States v. Askew,403 F.3d 496, 509(7th Cir.2005).After Bookerwe have said that a sentence within a properly calculated guideline range "is entitled to a rebuttable presumption of reasonableness,"United States v. Mykytiuk,415 F.3d 606, 608(7th Cir.2005)."[T]he farther the judge's sentence departs from the guidelines sentence (in either direction — that of greater severity, or that of greater lenity), the more compelling the justification based on factors in section 3553(a) that the judge must offer in order to enable the court of appeals to assess the reasonableness of the sentence imposed."United States v. Dean,414 F.3d 725, 729(7th Cir.2005).Justifying a sentence outside the range does not require canvassing the statutory factors: "`Judges need not rehearse on the record all of the considerations that 18 U.S.C. § 3553(a) lists; it is enough to calculate the range accurately and explain why (if the sentence lies outside it)this defendant deserves more or less.'"Id.(quotingUnited States v. George,403 F.3d 470, 472-73(7th Cir.2005)).Therefore, we are not asked to decide here whether 48 months could be a reasonable sentence; our function is to assess whether the district court's choice of sentence is adequately explained given the record before us.Here we must determine whether the court's articulated reasons for jumping from 21 to 48 months are sufficiently compelling on this record to satisfy us that the term imposed is reasonable.

As an initial matter, the government argues that we should not even reach this question because after the 48-month term was announced Castro-Juarez did not explicitly object to the sentence as "unreasonable."In the government's view, we should review Castro-Juarez's sentence only for "plain error" rather than for reasonableness.

The government's position has some support.In the context of supervised release revocations, where review of a prison term imposed upon revocation has always been for reasonableness, this court has held that failing to object in the district court explicitly on reasonableness grounds forfeits the argument for appeal.SeeUnited States v. Harvey,232 F.3d 585, 587(7th Cir.2000);United States v. Marvin,135 F.3d 1129, 1135(7th Cir.1998).Our decisions after Booker, however, have imposed no similar requirement and, indeed, assume the absence of any need to object to a sentence as unreasonable after its pronouncement.In appeals involving defendants who were sentenced before Booker without anticipating the decision or even recognizing the constitutional issues at stake, we routinely review the sentence for reasonableness notwithstanding the lack of objection.See, e.g., United States v. Stewart,411 F.3d 825, 829(7th Cir.2005);United States v. Ramsey,406 F.3d 426, 434(7th Cir.2005);United States v. Paladino,401 F.3d 471, 484(7th Cir.2005).

We believe that the unstated assumption in our post-Booker decisions is sound.To insist that defendants object at sentencing to preserve appellate review for reasonableness would create a trap for unwary defendants and saddle busy district courts with the burden of sitting through an objection — probably formulaic — in every criminal case.Since the district court will already have heard argument and allocution from the parties and weighed the relevant § 3553(a) factors before pronouncing sentence, we fail to see how requiring the defendant to then protest the term handed down as unreasonable will further the sentencing process in any meaningful way.Certainly we do not mean to discourage district courts from entertaining argument about the reasonableness of a sentence after its pronouncement, nor do we suggest that our longstanding insistence on proper objections as to other sentencing issues, e.g., the application of a guideline adjustment, should be relaxed.All we conclude here is that our review of a sentence for reasonableness is not affected by whether the defendant had the foresight to label his sentence "unreasonable" before the sentencing hearing adjourned.

We thus turn to the merits.Both parties suggest that a useful starting point in evaluating the reasonableness...